construction law essay

The literal rule

Source A At Line 10 The Literal Rule.

Explain The Literal Rule Using Source A And Cases To Illustrate Your Answer.

The literal rule is a type of statutory construction, which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law is to read, word for word and should not divert from its true meaning. According to the plain meaning rule, absent a contrary definition within the statute, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable. In this case Lord Esher said (in applying a literal approach) "If the words of an Act are clear then you must follow them even if they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity." The literal rule - developed in the early nineteenth century - has been the main rule applied ever since then. However, there are variations on this (the golden rule and mischief rule). Fisher V Bell a shopkeeper displayed a flick-knife in his window. The Restriction of Offensive Weapons Act 1959 made it an offence to offer such a knife for sale. The defendant argued that a display of anything in a show window is simply an offer to treat and this means that, under contract law, it is the customer who makes the offer to buy the knife. Here the court considered that Parliament knew the technical law, at Common Law, of the term 'offer'. Whitely V Chappell in this case the defendant was charged under a section that made it an offence to impersonate 'any person entitled to vote'. D had pretended to be a person whose name was on the voter's list, but had died. The Court held that he was not guilty since a dead person is not, in the literal meaning of the words, 'entitled to vote'. Cheeseman V DDP 'willfully and indecently exposing his person in a street to the annoyance of passengers'. Police Officers were stationed in a public lavatory in order to apprehend persons who were committing acts which had given rise to earlier complaints. The police officers were not resorting to that place of public resort in the ordinary way but for a special purpose and thus they were not passengers. This is also an example of the literal rule to statutory interpretation.

Excellent answer 14/15

(b) Using Source B, identify and explain the most suitable extrinsic aid that could be used in these situations.

(i) The House of Lords is considering an ambiguous word. The meaning of this word was discussed by Parliament during the passage of the Bill.

(ii) The House of Lords is trying to cover a gap in the law left by an Act. This Act was based on the Law Commission's recommendations.

(iii) The House of Lords is trying to find the plain, ordinary, literal meaning of a word. The word is not defined in the Act.

Hansard is a more likely option of extrinsic aid House of Lords accepted that the courts can refer to Hansard where legislation is (a) ambiguous - (b) statements are made by a minister or promoter of the Bill - (c) the statements relied on are clear. If these conditions are not approved or to be satisfied then it cannot be used.

The best extrinsic aid that I would use is law reform reports as the Law Commission is a law reform agency. Recommendations made by committees are often implemented, even if only to a limited degree, by legislation. Whether such reports could be considered by the court in order to interpret legislation was considered in this case. The report of the Foreign Judgments Committee 1932 could be considered in order to ascertain the mischief to be averted, but the majority stressed that such reports could not be used to interpret the meaning of the words.

The most appropriate extrinsic aid would be a dictionary of the time. Section 57 of the Offences against the Person Act 1861 made it an offence to 'marry' whilst one's original spouse was still alive (and there had been no divorce). R V Allen The word 'marry' can mean to become legally married or to 'go through a ceremony of marriage'. The Court decided that in the Offences against the Persons Act the word had the second meaning.

Again excellent 13/15

(C) (I) Source A Refers To The Mischief Rule.

Using Source A And Other Cases Explain How This Rule Is Applied.

The mischief rule is a rule of statutory interpretation that attempts to determine the legislator's intention its main aim is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. In Heydon's Case it was said there were four points a court should consider What was the common law before the making of the Act?, What was the mischief and defect for which the common law did not provide?, What is the remedy Parliament hath resolved and the true reason of the remedy. The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature. The rule was illustrated in the case of Smith v Hughes [1960] 2 All E.R. 859, where under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". Section 1(1) of the Street Offences Act 1959 said "it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution." The court considered appeals by six different women who had been on a balcony or at the windows of ground floor rooms. In each case, the women were attracting men by calling to them or tapping on a window. They argued they were not guilty since they were not in the street. They were guilty Lord Parker saying: "For my part I approach the matter by considering what the mischief is aimed at by this Act. Everybody knows this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in this way it can matter little whether the prostitute is standing in the street or in the doorway or on the balcony, or at a window, or whether the window is shut or open or half open." Corkery v Carpenter case where D was in charge of a bicycle whilst drunk. It is an offence to be drunk in charge of carriage Held: a bicycle is a "carriage" the mischief was drunks on the highway being in charge of transport. In the end he was guilty. 12/15 v good

(ii) Discuss The Strengths And Weaknesses Of The Mischief Rule.

The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules. It usually avoids unjust or absurd results in sentencing. It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established. It gives too much power to the unelected judiciary which is argued to be undemocratic. In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy. This is not often the case in modern legal systems. The rule can make the law uncertain, susceptible to the slippery slope.

Rather brief by comparison to your other answers 6/15

45/60 overall grade C part C lets your answer down a little.

Again at risk of sounding offensive it looks heavily influenced by work taken directly from other sources rather than research which has been re-written. You must get into the habit of expressing your answers in your own way and not repeating others' work directly.

Taken as an individual piece of work however, some parts of this are outstanding and I hope it bodes well for you and your result.

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